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FAIR USE TEST

Q1

Transformation

By incorporating the copyrighted material into your new work, has the material been given new expression, or altered in terms of meaning? (yes=green)

-YES EXAMPLE- The original picture of Madonna with her son has been 'transformed' into a multi-media collage with layers, color, iconography and American imagery. The original picture serves as a foundation for the new work, but the two images are very different from each other. (GREEN)

-MAYBE EXAMPLE-girl talk video This song by GirlTalk is probably "transformative" because it successfully changes the sound bites it uses into a new song with complicated rhythms, vocals and melodies and because it alters, manipulates, and draws over copyrighted images, thereby changing their look, feel and purpose. But content owners maintain that sampling of commercially produced sound recordings like this is not fair use, in part because of the established market for samples. When you hear an ordinary 3-5 second sample in a hip-hop song, it is ordinarily licensed. Girl Talk takes more of the original copyrighted work than an ordinary hip-hop sample, suggesting that he would have an even more difficult time establishing fair use. (YELLOW)

-NO EXAMPLE- Posting a famous movie on bittorrent. There is no transformation here.. If you showed someone the original clip and the secondary reposting and asked, "Tell me which ones which, the original or the reposting? It would be impossible to answer. Each clip is identical and a full copy of the movie. Nothing has been added, nothing has been taken away and nothing has been changed. If you can't tell the difference between the original and the 'second' version, it's not fair use. (RED)

Commercial

Will your work be used for commercial gain or only in a noncommercial context? (commercial=red; non-commercial=green)

Parody

Is the copyrighted work being parodied? (yes=green)

-YES EXAMPLE: Bert & Ernie Gangsta Rap This is a parody of both gangsta rap and Bert & Ernie. As you watch Bert & Ernie, you have a set of expectations as to what they would or wouldn't say. You also have expectations of gangsta rap, and when you hear it coming out of the mouth of children puppets, it changes how you hear it. This clip is parodying the over the top "wholesomeness" of Bert & Ernie, and the gritty, exaggerated reality of gangsta rap. It's an interesting, funny, and ultimately successful parody.

-MAYBE EXAMPLE: Mystery Science Theatre Mystery Science Theatre uses clips of old movies to make fun of those movies and create humorous new content. Under some circumstances, fair use may permit you to use a substantial portion or even all of a copyrighted work, if doing so is necessary to make your point. But, using all or nearly all of a work makes it less likely that a court will find your use to be fair.

-NO EXAMPLE: DR Juice Cartoon When you use a copyrighted work to create a parody, you should be careful to aim your mockery, criticism, or commentary at the work itself (or its creator). You should not simply use someone else’s copyrighted work to make fun of some unrelated third party. One court held that using Dr. Seuss’s copyrighted material to create a parody about O.J. Simpson was not fair use.

Critique

Are you commenting or critiquing the copyrighted material? (yes=green) Are you using the copyrighted work as an illustration or example? (yes=green)

-YES EXAMPLE- Show News clips Jon Stewart uses excerpts from President George Bush's speeches in order to comment on and critique the President’s actions and policies. Stewart uses the excerpts to encourage the viewer to understand the speeches in a new and different way, and this montage does not provide a substitute for the original speeches. In addition, he uses no more of the speeches than is necessary for his critique. This is likely fair use.

-YES EXAMPLE- [ http://www.youtube.com/watch?v=3ljIq0lz0qY DJ Spooky’s Rebirth of a Nation] DJ Spooky 's video, "Rebirth of A Nation" uses the copyrighted film, “Birth of a Nation,” to engage in historical and social commentary. He repurposes the original film for new creative and critical ends and gives it new meaning. He adds to the “transformative” character of his use by interspersing excerpts of the film with other content. This is likely fair use.

-YES EXAMPLE- Jeff Koon’s Niagara Jeff Koons juxtaposed copyrighted images of fashion models with images of high-fat, high-sugar foods in order to make an artistic statement about American culture. A court held this to be fair use. It would be difficult for Koons to achieve his goal without using actual media images. If he had not used these found objects (the photographs), then how would the viewer know what Koons was criticizing/commenting upon? How could Koons (or any other artist) talk about culture without using images from culture?Jeff Koons juxtaposed copyrighted images of fashion models with images of high-fat, high-sugar foods in order to make an artistic statement about American culture. A court held this to be fair use. It would be difficult for Koons to achieve his goal without using actual media images. If he had not used these found objects (the photographs), then how would the viewer know what Koons was criticizing/commenting upon? How could Koons (or any other artist) talk about culture without using images from culture?

-NO EXAMPLE- Tarzan Cartoon-Direct Post on Youtube Mere reposting of copyrighted content generally is not a fair use. These cartoons of Tarzan from 1979 were quite popular, but they are not available for purchase anywhere online. Posting these cartoons in their entirety on YouTube provides a substitute for the original and undermines a potential market for the work. There is no commentary or critique, and nothing has been added to these episodes.

Q2

Published

Has the copyrighted material been published already? (yes=green)

-YES EXAMPLE-Your friend gives you a song they've just released. Because the song is now public, it is more eligible for critique, commentary, and transformation.

-NO EXAMPLE- Nation & Ford Interview When the Nation published excerpts of ex-president Gerald Ford's then-unpublished memoirs without permission, the Supreme Court of the United held that it was not fair use. At the time, Ford had a deal with Time Magazine, which gave Time the right to be the first to publish the memoirs. Because the Nation beat them to the punch, Time broke its contract with Ford. The Court focused on the Nation’s interference with Ford and Time’s right to be the first to present the work to the public. It also considered important that the Nation took the “heart” of Ford’s memoir (the really important parts). After this case, Congress amended the Copyright Act to clarify that some uses of unpublished works can be fair use, but courts still say that using an unpublished work generally weighs against fair use.

-NO EXAMPLE-- (Love v. Kwitny, 772 F. Supp. 1367 (S.D. N.Y. 1989).) An author copied more than half of an unpublished manuscript to prove that someone was involved in the overthrow of the Iranian government. A court deemed this not a fair use.

Factual

Are you using copyrighted material that concerns facts or data, and/or is scholarly in nature?

Q3

Amount

Is the amount of the original copyrighted material you are using reasonable? 
Could you use less and still make the same statement? 

Q4

Substitute

Would (potential) buyers/users of the original work consider your work an adequate substitute for the original? 

(dancing baby/Prince GREEN; line dance at the office or GirlTalk YELLOW; Making entire song available on BitTorrent)

Market Injury

Is there an existing or potential market for the original work that could be impacted? 

(Swarthmore Diebold publishing voting.. (no market for emails therefore GREEN; Music—sampling. Established market for licensing short portions of music. RED. Using a profile page/social network collage myspace.. no once has a licensed market profile pages. There’s not necessarily a market.

EXTRA CREDIT

Have you researched and are you familiar with the fair use best practices your media-making community uses?

If Red answers outnumber all others (4 or more)

If you have more red answers than any other type, you may want to reconsider whether your use is really a fair one. Remember, fair use involves the interaction of multiple variables. Consider what you’ve learned: could you modify the work to make it fall more squarely within the fair use factors? Discuss the choices and challenges you face with others and see if they come up with the same results.

If Green and Red are equal in # (3-4 apiece)

If you have as many green answers as red answers, it is difficult to predict whether this use would be considered fair or not. Remember, fair use involves the interaction of multiple variables. Some factors may be more important to a judge than others. To be safe, you may want to go back and modify this work in light of what you’ve learned. Discuss the choices and challenges you face with others and see if they come up with the same results as you.

If Green answers outnumber all others (4 or more)

If you have more green answers than any other type, it’s likely that your use is a fair one. Remember, fair use involves the interaction of multiple variables. A judge will look at a number of factors to make a fair use decision. It looks like your work would likely pass muster. Congratulations! It’s not easy to find a fair use!